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United States v. Banker

United States Court of Appeals, Fourth Circuit

November 14, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TERRELL BANKER, Defendant-Appellant.

          Argued: September 15, 2017

         Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, District Judge. (7:15-cr-00023-GEC-1)

         ARGUED:

          Robert Edwin Dean, II, ROB DEAN LAW, Roanoke, Virginia, for Appellant.

          Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

         ON BRIEF:

          John P. Fishwick, Jr., United States Attorney, Anthony P. Giorno, Assistant United States Attorney, Chief of the Civil Division, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

          Before SHEDD, AGEE, and FLOYD, Circuit Judges.

          AGEE, Circuit Judge:

         Terrell Banker appeals his convictions for conspiracy to engage in sex trafficking of a minor, in violation of 18 U.S.C. § 1594; sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a); and enticement of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2422(b). He contends the district court improperly instructed the jury on the scienter element of each offense because they require proof that he knew the victim was a minor. Banker also contends that, regardless of the scienter standard required, the evidence was insufficient to support his convictions. For the reasons set out below, we reject these arguments and affirm Banker's convictions.

         I.

         We recount the relevant facts "in the light most favorable to the Government." Evans v. United States, 504 U.S. 255, 257 (1992). In early February 2015, Banker met C.O. through a mutual friend, Laura Cook, who had only recently met C.O. At that time, C.O. was seventeen years old. After all the events at issue in this case occurred, C.O. turned eighteen years of age on June 1, 2015.

         Although C.O. initially lied to Cook and said that she was eighteen, C.O. soon told her the truth that she was a minor. C.O. never directly told Banker her age.

         Around the time they met in person, Banker, Cook, and C.O. also became "friends" on Facebook, where C.O.'s account incorrectly represented that she was eighteen years old. Despite that representation, in a March 2015 Facebook update, which Banker would have been able to see, C.O. tagged Cook and another mutual friend and referenced her upcoming 18th birthday: "I can't wait for the summer. It's going to be a live [sic] AF . . . . Girls you gonna party with me on my birthday in June? It's the big one, ladies." J.A. 150.

         Prior to the events leading to Banker's indictment, he, Cook, and C.O. spent most weekends together. Banker supplied illicit drugs to both women and, because C.O. did not have money to pay him, accepted payment in the form of sex from her.

         Several days prior to the charged events, C.O. extended her weekend visit with Cook. Although Banker had agreed to take C.O. to her high school on Monday morning, C.O. ended up "d[oing] coke all [Sunday] night" and did not make it to school. J.A. 155. Despite that decision, C.O. confided in Cook that she was scared about missing another day of school because she was already on probation. Cook invited C.O. to "stay with her until [C.O.] turned 18." J.A. 161. Having decided to stay with Cook, C.O. told Banker that she was "not going home, [she was now] a runaway." J.A. 162.

         C.O. asked if Banker could sell her phone because she needed money and did not want anyone to be able to track her location via her phone. In addition, C.O. asked Banker to take her to her stepfather's house while he was at work so that she could take some things to pawn. Banker agreed, though they did not follow through with that plan. During the same time, C.O. and Cook discussed how C.O. could earn money. Cook suggested that C.O. become a prostitute and that Banker could help her do so.

         After that conversation, Cook and Banker sat in Banker's truck in front of Cook's residence and talked for several hours. During that conversation, overheard by C.O., Cook asked Banker, "What are we going [to] do with her? She's 17. She's a runaway." J.A. 174; see also J.A. 237. Banker's expression did not noticeably change immediately thereafter and no verbal response from Banker is in the record.

         A few days later, Banker arranged for C.O. to have sex with a local truck driver upon payment of a fee to Banker. He had periodically arranged for the truck driver to meet women in the past for such services, so Banker and the truck driver negotiated a price of $150 and agreed to meet at midnight on April 1 in the parking lot of an area hotel.

         Banker and C.O. coordinated the rendezvous through a series of messages on Facebook. C.O. expressed hesitation because she had "never prostituted [her]self before" and she was concerned about the truck driver's appearance. J.A. 179. Banker attempted to allay her doubts, encouraging her to just get it over with quickly, directing her to a photograph of the truck driver on Facebook, and reassuring her that the man was "cool" and that a mutual friend had previously had sex with him as well. J.A. 179-80. He also reminded her that she needed money quickly. C.O. agreed to do as Banker proposed.

         At the arranged time, Banker drove C.O. to the hotel parking lot. He then took $200 from the truck driver and left the scene in order to get change. While he was gone, C.O. and the truck driver had sex in the driver's truck.

         In the meantime, a bystander telephoned the police to report suspicious activity in the hotel parking lot. The police officer dispatched to the hotel discovered C.O. and the truck driver waiting in the truck for Banker to return. C.O. initially provided false identifying information, but soon started cooperating with the police and relayed the recent course of events with Banker and Cook. Banker did not return to the hotel.

         The police asked C.O. to contact Banker on Facebook. When she did, C.O. told Banker that she had been "held . . . as a runaway, " but was finally back home. J.A. 190. She told him "[t]hey didn't charge me because I'm a minor." J.A. 190. Banker did not reply directly to C.O.'s statement that she was a minor.

         Banker was charged in a superseding indictment with conspiracy to engage in sex trafficking of a minor, in violation of 18 U.S.C. § 1594; sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a); and enticement of a minor, in ...


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